Moss v. Central of Georgia R. Co.

• Decision Date: 03 September 1975
• Docket Number: No. 50895,No. 2,50895,2
• Citation: 135 Ga.App. 904,219 S.E.2d 593
• Parties: R. E. MOSS v. CENTRAL OF GEORGIA RAILROAD COMPANY
• Court: Georgia Court of Appeals

Page 593

219 S.E.2d 593

135 Ga.App. 904

R. E. MOSS v. CENTRAL OF GEORGIA RAILROAD COMPANY.

No. 50895.

Court of Appeals of Georgia, Division No. 2.

Sept. 3, 1975.

Rehearing Denied Sept. 30, 1975.

Billy E. Moore, Edward W. Szczepanski, Columbus, for appellant.

Hatcher, Stubbs, Land, Hollis & Rothschild, William B. Hardagree, Albert W. Stubbs, Columbus, for appellee.

CLARK, Judge.

The question presented in this FELA ¹ personal injury action is whether plaintiff, Ralph E. Moss, was an independent contractor or an employee of the defendant, Central of Georgia Railroad Company, at the time of his injury. The trial court, determining that plaintiff was an independent contractor as a matter of law, awarded summary judgment to the railroad. From this adverse ruling, plaintiff has taken this appeal.

'On motion for summary judgment the defendant, as movant, must produce evidence which negates 'at least one essential element entitling the plaintiff to recovery under every theory fairly drawn from the pleadings and the evidence.' Saunders v. Vikers, 116 Ga.App. 733(2), 158 S.E.2d 324.' Lockhart v. Beaird, 128 Ga.App. 7, 8, 195 S.E.2d 292, 293. Has the railroad carried this burden?

At the outset, we note that although state courts have concurrent jurisdiction with federal district courts to entertain FELA cases (see 45 U.S.C. § 56), the problem of whether an FELA plaintiff is an independent contractor or an employee is a problem of federal law. Baker v. Texas & Pac. Ry. Co., 359 U.S. 227, 228, 79 S.Ct. 664, 3 L.Ed.2d 756; see Baltimore & O.R.R. v. Davis, 235 Md. 568, 202 A.2d 348, reversed on other grounds, 379 U.S. 671, 85 S.Ct. 636, 13 L.Ed.2d 594; Knight v. Chicago & N.W Ry., 3 Ill.App.2d 502, 123 N.Ed.2d 128. Thus, in deciding the question presented by this appeal, we must look to the prevailing federal case law. Accordingly, we refrain from a comparison of Georgia cases on this question.

The pre-eminent criterion for determining the status of a contractor in an FELA action is the right of the railroad to direct, supervise and control the contractor in the course of his work. Dougall v. Spokane, P. & S. Ry., 207 F.2d 843 (9th Cir. 1953); Missouri-Kansas-Texas Ry. v. Hearson, 422 F.2d 1037, 1041 (10th Cir. 1970). But the element of control is by no means the sole determinative factor. '(T)he phrase 'right to control' is not a single magical solvent for the 'right to control' must be considered in the light of other incidents relating to the work performed.' Byrne v. Pennsylvania R. Co., 262 F.2d 906, 912 (3rd Cir. 1959); Pennsylvania R. Co. v. Barlion, 172 F.2d 710, 711 (6th Cir. 1949). In this respect, as was noted in Missouri-Kansas-Texas Ry. v. Hearson, supra, the United States Supreme Court directs our attention to the Restatement Second of Agency. See e.g., Baker v. Texas & Pac. Ry. Co., supra.

According to the Restatement, Agency 2d § 220(2), the following factors are to be considered in determining whether one acting for another is an independent contractor or an employee: 1) the extent of control which, by agreement, the employer may exercise over the details of the work; 2) whether or not the one employed is engaged in a distinct occupation or business; 3) whether or not the work to be performed is usually done under the direction of the employer or by a specialist who needs no supervision; 4) the skill required in the particular occupation; 5) whether the employer supplies the tools and the place of work for the one employed; 6) the length of time for which the person is employed; 7) the method of payment, whether by the time or by the job; 8) whether or not the work to be performed is a part of the regular business of the employer; 9) whether or not the parties believe they are creating an agency relationship; and 10) whether the employer is or is not in business.

We now examine the evidence adduced upon the railroad's motion for summary judgment in light of the factors outlined above. Before doing so, however, we pause to point out that one may be both a servant and an independent contractor with respect to his employer. For 'a person can be an independent contractor in one part of his activity and an employee in another.' Birmingham v. Bartels, 157 F.2d 295, 303 (8th Cir. 1946), reversed on other grounds, 332 U.S. 126, 67 S.Ct. 1547, 91 L.Ed. 1947. See also Chicago, Rock Island & Pac. Ry. v. Bond, 240 U.S. 449, 36 S.Ct. 403, 60 L.Ed. 735; 57 C.J.S. Master and Servant § 583, p. 353. Thus, we must not determine whether plaintiff was a servant or an independent contractor in every phase of his employment activity, but whether plaintiff was a servant or an independent contractor at the time of his injury.

Plaintiff was injured when, on June 3, 1972, a railroad electrical line pole which he had been climbing fell to the ground. The circumstances leading up to and surrounding plaintiff's fall are outlined as follows: Plaintiff worked for the railroad as a full time communications maintainer from 1949 until 1967. In the latter year, plaintiff, along with numerous other employees, was laid off by the railroad when it was acquired by the Southern Railway Company. Following the termination of his employment, plaintiff never again worked for the railroad as a regular employee. However, within three or four months, plaintiff began doing electrical work for the railroad periodically. And, about one year after his employment was terminated, plaintiff established the A & G Electrical Company through which he continued to work for the railroad on a part-time basis. The A & G Electrical Company also did electrical work for the Georgia Power Company, a mobile home sales outfit, and various individuals who were acquainted with plaintiff.

Sometime prior to plaintiff's fall, Fred J. Kull, an electrical engineer with the Communications and Signal Department of Southern Railway, observed that various electrical line poles in the roundhouse area of the defendant railroad's Columbus Yard were defective and needed to be replaced. Determining that the Communications and Signal Department was not equipped to do the job, Southern Railway, on behalf of the defendant railroad, asked two electrical companies, Flourney Electric and A & G Electric, to submit bids on the cost of replacing the defective poles and transferring the electrical lines to new poles.

In response to this invitation, plaintiff submitted a bid of $7,375.00, to include the cost of materials and labor. Flourney Electric submitted a bid of $5,098.70, and, of course, it was awarded the contract. Flourney delivered new poles to the work site, but failed to act further in the performance of its contract. Therefore, Flourney's contract was canceled and the railroad asked plaintiff to submit another bid, subtracting therefrom the cost price of the poles which had been delivered by Flourney. Plaintiff's second bid, in the amount of $6,550.00, included labor and material, except for the cost of the poles. The bid was accepted, a purchase order issued, and plaintiff began work on the project. It was while working upon this project that plaintiff was injured.

Was plaintiff a servant or an independent contractor at the time of his...